SCOTUS decision thread for Monday, June 25th, 2012 (10am EDT)

[Perdogg]

1. Az Immigration Case

2. Stolen Valor Act

3. ObamaCare Mandate

4. ObamaCare Severability

[JCBreckenridge]

Been done before - seems to be an effective way to deal with the issue - send them to Washington DC. :)

[butterdezillion]

Seems like no matter how we slice it, Kennedy holds the future of this country in his hand. With the stroke of his pen he can end the US Constitution.

Not good.

The idea that Roberts would basically give up the nation’s borders in order to manipulate Kennedy’s emotions so he’ll think about saying the government can’t force us to buy any dang thing they want to force us to buy..... is not all that comforting to me right now.

I have a very, very bad feeling about what this week is going to bring.

[milagro]

What Laz said!

[JCBreckenridge]

If the federal government continues to fail to enforce the laws, then effective secession is what will occur. Texas already does this, not sure what Arizona is waiting for.

[PapaBear3625]

Imagine a President declaring that the feds would not enforce drug laws, and that the states could not arrest anybody caught transporting drugs across a state border because regulation of interstate commerce is a federal function.

[kevao]

Scalia, Thomas, Alito all got to post their dissents.

Have you read their dissents yet? Did they actually argue in favor of individual states setting their own unique immigration laws?

[4Liberty]

Conclusion of 1070 ruling:

The Feds like a “Funded Mandate” (Law) if they support it.

If they don’t, they must remain Unfunded Mandates — even if a US State chooses to fund (enforce) the laws with its own state/local resources.

[JCBreckenridge]

They argued that the states should be able to enforce (or not enforce), as the case may be, federal immigration laws.

What happens when we get a republican in office and CA chooses to turn a blind eye to federal enforcement of the border?

If the decision had held up AZ, it would shield CA as the state would be the enforcer.

There is a reason why naturalization was controlled by the feds in the constitution. It’s right there. Immigration is an enumerated power and thus not subject to the 10th.

[JCBreckenridge]

Then we the people ought to remove said president from office. :)

[butterdezillion]

I’d like to think it’s not true, but the more I see, the more I do suspect that it’s true.

[AuH2ORepublican]

“So in joining with the majority he got Arizona 1/4 of a loaf, which I suppose is better than nothing.”

---

I wouldn’t go that far. Had Roberts voted with the conservatives to allow the entire AZ law to stand, there would indeed have been a 4-4 split on striking down 3 of the law’s sections, so the 9th Circuit’s upholding of such sections would have stood. However, a Kennedy 4-vote plurality opinion (sans Roberts) would have gotten 8 votes for upholding the section of the law that permits cops to inquire as to the immigration status of persons they arrest, so the 9th Circuit would have been overturned on that aspect of its opinion. Thus, the result would have been exactly the same irrespective of how Roberts would have voted.

That being said, as I indicated in my post #323, there might be other tactical reasons for Roberts to have voted with Kennedy, and I think that it portends well for a favorable disposition of the Obamacare case.

[Williams]

There is no “us”. Commentators worldwide widely predicted the Arizona law would be upheld. Conservatives were giddy about it. “Everyone thought” is a common expression, obviously it does not literally include “everyone”. And I hereby officially exempt you from it.

Are you seriously stating that prior to this decision the majority of folks on Free Republic thought the law would be struck down?

Nonsense. And speaking only for myself, I have less hope of the mandate being struck down. Unfortunately.

BTW, “everyone” thinks the mandate will be struck down.

[Mr Rogers]

As I said, the essence of the ruling comes down to one sentence in the ruling:

“As a general rule, it is not a crime for a removable alien to remain in the United States.”

A lot of us think an illegal immigrant is...well, illegal!

As painful as I find this ruling, I think it is legally correct. The Congress has passed laws, and under those laws "illegal immigrants" don't exist. They are, in the words of the US Supreme Court, "removable alien[s]".

I strongly suggest all Freepers drop the term "illegal alien" and use, instead, the correct term: "removable alien". A lot of co-workers or family may be puzzled by this, but you can point out that the US Supreme Court, analyzing Federal Law, says the correct term is "removable alien" - and that the Federal Government alone has the right to decide if removal is appropriate on a case-by-case basis.

My guess is that a lot of folks will feel very uncomfortable with the idea of "removable aliens", since many of us think that it is supposed to be illegal.

I also like PA-RIVER's idea:

"So if Arizona gave every illegal immigrant a bus ticket to NYC and a promise of a Debit card for 100 dollars as they get on the bus to NYC, that would be legal. Let Chucky Schummer explain why he's an Anti Mexican bigot when he wants them to stop. Let the streets of Manhattan become a crowded Mexican slum."

My only adjustment would be to send them to Washington DC, and offer them $100/month for 6 months if they stay in DC and collect their check from an office Arizona would open in DC - the "Office of Removable Alien Support".

[kabar]

Here are the issues as described by the Standing with AZ website prior to the decision. They got most of it right, 3 out of 4.

How We Got Here

The Supreme Court decision will include the following provisons of S.B. 1070 which were blocked by Federal District Judge Susan Bolton in July 2010. Below we analyze the sections, and provide our prediction of how the Court is likely to act. Even if just those two provisions we expect are upheld, it will unleash an effort to extend similar provisions to states across America…

• Section 2(B) – Check Immigration Status Based Upon “Reasonable Suspicion”

This section requires state and local police officers to attempt to determine the immigration status of any person stopped under state or local law if “reasonable suspicion” exists that the person is unlawfully present in the United States. (Note: “reasonable suspicion” means having a valid reason to suspect unlawful activity, but not enough evidence to make an arrest.) This section also requires state and local authorities to determine the immigration status of any person placed under arrest, regardless of whether the person is suspected of being in the country unlawfully.

NOTES: This is the most critical provision. Despite numerous lower court arguments and endless news and blog disputes, “reasonable suspicion” has long been settled law. In Terry v. Ohio (1968), the U.S. Supreme Court clearly stated that it does not violate the 4th Amendment.Also, the U.S. Solictor General Donald Verilli himself had to concede that law enforcement officers in Arizona could ask about people’s legal immigration status even before this law passed. Once you concede that, the fight becomes simply whether the state can direct its officers how to exercise their discretion. And that is clearly permissible.

SWA expects the Court to uphold this Section.

• Section 3 – Illegal immigration a State Crime This provision makes it a crime under Arizona law for unauthorized immigrants to violate the provisions of federal law requiring them to apply for “registration” with the federal government and to carry a registration card if one has been issued to them. Violations of this provision are punishable by up to 20 days in jail for a first violation and 30 days in jail for subsequent violations. NOTES: The Administration’s argument against this provision is that Federal law proscribes only a civil violation for such offenses, whereas Arizona makes the act of being in the state illegally a criminal offense. Comments by justices including Chief Justice John Roberts and Justice Alito, show that there is less than a consensus to uphold this Section. However this provision takes on new importance in light of Obama’s recent amnesty decree for so-called “Dreamers”, which would outrageously extend to well over 2 million illegal aliens. If the Court leaves this Section intact, those individuals would still be subject to jail time in Arizona, despite Obama’s edict.

SWA believes the Court is more likely than not to overturn this Section.

• Section 5(C) – Day laborers solicitation This section makes it a crime under Arizona law for immigrants who are not authorized to work in the United States to apply for work, solicit work in a public place, or perform work within the state’s borders. The term “solicit” means any form of communication, including a gesture or nod, indicating that a person is willing to be employed. Violations of this provision are punishable by up to six months in jail and a $2,500 fine.

NOTES: This is the least important provision of S.B. 1070 to Arizona. That said, it is also quite problematic, mostly because it is the subject of litigation elsewhere, including a Redondo Beach, California provision that was first upheld and then blocked by a Federal appeals court, and an appeal was rejected by the Supreme Court. In addition, Justice Susan Bolton recently blocked this provision in Arizona’s S.B. 1070 as well, due to a separate lawsuit – asserting that it violates the First Amendment protect of ”commercial speech” (which seems ludicrous to SWA, since illegal aliens could never legally register as commercial entities, such as sole proprietors or LLCs). The justices may be content to let this case work its way up to them and be decided separately. Or, they could uphold the provision, which would surprise us and many Court observers. One issues which could be a wildcard is the Court’s ruling in favor of Arizona’s E-Verify law and employer sanctions in 2010 – which might lean Kennedy towards support of Section 5(C).

SWA believes the the Court is likely to reject this provision.

• Section 6 – “Probable Cause” Arrests of Illegal Aliens This section authorizes state and local police officers to arrest immigrants without a warrant where “probable cause” exists that they committed a public offense making them removable from the United States. (Note: “probable cause” means having enough evidence of unlawful activity to obtain a warrant or make an arrest.) Under the provision, Arizona law enforcement officers may arrest lawfully present immigrants for crimes committed outside the state, or for crimes for which they were previously incarcerated, if the commission of such a crime is grounds for deportation.

NOTES: This is another critical “must have” section, which contributed greatly to the exodus of 100,000 illegal aliens from Arizona after the passage of S.B. 1070. It is a huge deterrent, since they would perpetually be under threat of arrest and removal. And based on the arguments before the court, many similar to the arguments over Section 2(B), the justices did not see any Federal preemption applicable in this Section. In addition, this section is perfectly compatible with the Immigration Reform Acts of 1996 establishing 287(g) Federal-State cooperation in enforcement of immigration laws.

SWA expects the Court to uphold this section.

The gist of the Obama Administration’s argument against the above provisions is that they preempted by federal law, meaning they are in conflict with federal law because federal law takes precedence as the law of the land. The basis of this argument is the Constitutional Article I, section 8, clause 4:

“The Congress shall have Power…To establish a uniform Rule of Naturalization….”

The Administration has also argued that Arizona’s law impedes the United States’ ability to interface with foreign nations by interfering with foreign nationals, a bizarre claim butressed by Mexico’s filing of an amicus curiae against S.B. 1070.

Of course the Administration did not go anywhere near the Constitutional section that – if honored – would make the Arizona law completely unneccessary, Article IV, Section 4:

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion….”

We hope that five justices see through the hypocrisy of the Administration’s position against Arizona, and uphold most of 1070, if not all of it.

AZ never expressed a desire or attempt to preempt federal law. Or to rewrite federal immigration law--just enforce it.

My biggest disappointment is the failure to uphold Section 6. It doesn't make sense since states work with the federal government all of the time enforcing federal immigration laws, e.g., the 287 g program, the Secure Communities program, etc.

I don't understand how you could extrapolate from upholding the AZ law that other states like CA could write their own immigration laws. That is pure nonsense.

[milagro]

THIS needs to become a major Republican compaign issue.

Rubio brought it up in his interview with Hannity--unfortunately that interview was pre-empted by the breaking news on the Sandusky verdict.

I really like Rubio--he's thoughtful and articulate, not full of the usual "bombast" so many politicians sesem to enjoy throwing around. Don't know if I'd rather see him stay in the Senate, or join Romney on the ticket.

But whatever, this country needs his thoughtfulness and courage!

[kabar]

Removable alien includes both legal and illegal aliens. We have around 15 million green card holders. They remain in a probationary status in the sense that if they commit a felony, they can be deported and have their permanent legal resident status revoked.

[kabar]

Removable alien includes both legal and illegal aliens. We have around 15 million green card holders. They remain in a probationary status in the sense that if they commit a felony, they can be deported and have their permanent legal resident status revoked.

[JCBreckenridge]

“I don’t understand how you could extrapolate from upholding the AZ law that other states like CA could write their own immigration laws. That is pure nonsense.”

Section 3. AZ is setting a criminal punishment for those found to be illegally in AZ. Under what grounds? AZ saying that is what they believe to be appropriate.

If the federal government were to uphold AZ setting it’s own laws, then other states would follow suit, and likely as not, laws which would provide them with visa waivers, cards, etc.

These immigrants would now be legal and AZ couldn’t enforce their own provisions to deport them.

Whereas, by upholding in part, AZ can enforce federal law by recording everyone who is found without documentation, and sending them to the feds.

The court gave AZ what you are saying they asked for, the ability to enforce federal law, not the ability to set their own law over and above federal law.

[kabar]

By authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, §6 too createsan obstacle to federal law. As a general rule, it is not a crime for aremovable alien to remain in the United States. The federal scheme instructs when it is appropriate to arrest an alien during the removal process. The Attorney General in some circumstances will issue awarrant for trained federal immigration officers to execute. If no federal warrant has been issued, these officers have more limited authority. They may arrest an alien for being “in the United States inviolation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” §1357(a)(2).

Section 6 attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform an immigration officer’s functions. This includes instances where the Attorney General has granted that authority in a formal agreement with a state or local government. See, e.g., §1357(g)(1). Although federal law permits state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the UnitedStates,” §1357(g)(10)(B), this does not encompass the unilateral decision to detain authorized by §6. Pp. 15–19

[Servant of the Cross]

I’d be worried if I was you Au H2O. But I love your legal analysis too!